Did the Founders Make the Presidency Too Powerful?

The American people have, unfortunately, come to see the president as the embodiment of their hopes, their dreams, and their nightmares. It is time to begin a conversation about the nature, goals, and limits of the U.S. Presidency…

When it comes to the American Founding, broadly defined, it’s hard for this born-and-bred Kansan not to genuflect. After all, the Founders were extraordinary in almost every way, and, through the great minds and experiences of the past, they inherited and then perfected, properly understood, a republic. There’s no finer example of the creation of a political society on the scale of the American Founding, before or after. Their achievement was extraordinary. The years 1761 to 1806 stand as some of the finest ever in world history, an explosion and exploration of self-government. Every second academic year, I have the privilege of teaching the American Founding, and I never take this for granted. I’m as patriotic as they come, perhaps to a fault.

Just as the Founders analyzed the failures and successes of the past, so must we. After all, we must remember, they sought not a “perfect union,” but a “more perfect union.” It is well worth remembering perhaps the most interesting of the neglected founders, John Dickinson, who famously stated on August 13, 1787:

Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them. This is then our guide.

It would be hard to find a greater statement of discovery and Celtic Enlightenment thinking—as in Adam Smith, David Hume, and Edmund Burke—than this. Frankly, it would be hard to be any more Whiggish than this. Well worth considering, however.

What does experience tell us, 229 years after the writing of the U.S. Constitution? Have we learned anything about a republic? We certainly should have. To trap our republicanism neatly in 1787 is to misunderstand how the Founders perceived their own place in history. I am not, I must stress, arguing for a progressive interpretation of the Constitution. Quite the opposite. But, we must be wise, and we must look to experience. Just as the Founders looked to the past, so should we conservatives. After all, we need to know what to conserve, what to reform, and what to abolish—the very Burkean job of every generation.

Whatever successes the Founders had, however, one grand mistake has hampered the effectiveness of the American republic to resist the tyranny of democratic sentiments and democratic despotism as it emerged in the nineteenth and, then, the twentieth centuries. In particular, the Founders failed to restrict the executive and prevent it from becoming the very tyranny they opposed in the British monarch. Indeed, our president today is far more powerful than George III ever imagined himself to be. The presidency is, simply put, out of control, both in the actual workings of the executive branch and in the minds of its adherents among the populace. As I type this, major cities across the U.S. continue to experience protests on the verge (some have crossed over) of becoming riots, all because of anger over who will actually sit in the oval office. I hope and pray that these demonstrations will have run their course by the time this essay appears, but we only have to look to the presidential election of 1860—when Abraham Lincoln’s victory spurred seven Southern states to leave the Union—to understand how deep American political resentment can run.

Even if they have subsided, the protests reveal rather horribly how many false and misguided hopes we as an American people harbor in regard to this branch of government. As originally understood, the executive was never meant to embody the will of the American people, but merely to execute its will as expressed through the Congress.

As James Madison recorded in his famous Notes on the Federal Convention:

Mr. Randolph strenuously opposed a unity in the Executive magistracy. He regarded it as the fœtus of monarchy. We had he said no motive to be governed by the British Governmt. As our prototype. He did not mean however to throw censure on that Excellent fabric. If we were in a situation to copy it he did not know that he should be opposed to it; but the fixt genius of the people of America required a different form of Government. He could not see why the great requisites for the Executive department, vigor, dispatch & responsibility could not be found in three men, as well as in one man. The Executive ought to be independent. It ought therefore (in order to support its independence) to consist of more than one.

Following in the footsteps of the Founders, no president dared to claim his office to be the embodiment of the will of the American people until our seventh president, Andrew Jackson. Despite this pretense, the presidency remained relatively contained for the next century. (The obvious exception was Abraham Lincoln, but the events surrounding this president are extraordinary, thus allowing the exception to prove the rule.) Not until Woodrow Wilson did the presidency attain the heights first envisioned by Jackson. It’s no accident that the New Deal court historians who puffed up Franklin Roosevelt were the revivers of the Andrew-Jackson-as-great-president myth.

Since Wilson, though, the radically explosive expansion of presidential power had become the norm, with only real exceptions to this being Warren G. Harding, Calvin Coolidge, and Ronald Reagan. The presidency has become the single element most corrosive to our republic. From permanent Commander-in-Chief to wielder of the pen of the executive order, the presidency has successfully claimed the power of the legislature while gelding Congress. Every once in a while, charismatic Senators such as Frank Church and Rand Paul have attempted to reclaim legislative power, but their efforts have proven rather ineffective, no matter how noble their fight.

As anti-ideological as the Founders were, they did possess one bizarrely optimistic and idyllic hope about the “new order of the ages.” In such a time, they hoped, they would usher in a new age in which virtue became more widespread as well as more pronounced. In what seems to us today so utterly naïve, Ben Franklin claimed that George Washington would signal the beginning of a new era in human virtue.

To bring the matter nearer home, have we not seen the great and most important of our officers, that of General of our armies executed for eight years together without the smallest salary, by a Patriot whom I will not now offend by any other praise; and this through fatigues and distresses in common with the other brave men his military friends & companions, and the constant anxieties peculiar to his station? And shall we doubt finding three or four men in all the U. States, with public spirit enough to bear sitting in peaceful Council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed. Sir, I have a better opinion of our country. I think we shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the Office in question.

Arguably, though, only one or two persons at best have even come close to measuring up to Washington’s standards as a man and as a leader. Humanity is just not capable of producing such greatness repeatedly and consistently. God is, but if He has given us such men in every generation, they have not revealed themselves, at least in the realm of politics.

More worrisome, though, is that the American people—conservative, liberal, and otherwise—have come to see the president as the embodiment of their hopes, their dreams, and their nightmares. Far more worrisome, this seems to have become the default position—a poor habit, but one now deeply rooted in the American psyche.

I realize it would be utopian to imagine an absolution of Article II of the U.S. Constitution, but it would not be folly to believe that Americans could begin a conversation about the nature, the goals, and the limits on the U.S. Presidency. If this happens, it would need to come from the legislative branch. In the 1830s, the Whig party did very well resisting Andrew Jackson’s presumption in holding the president out as the democratic element of the republic. In some ways, one might even argue that they succeeded for a hundred years. We need to hope that legislative leaders today, such as Justin Amash, Rand Paul, and Ted Cruz, might lead a similar effort. Certainly, it’s worth considering.

The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.

3 Comments

My initial response was to quote that famous statement to the effect our form of government was designed for a virtuous people, and none other. But in light of history, that would be entirely fatuous.
Perhaps it would be salutary to inquire where and how Congress surrendered its prerogatives to the Executive and Judicial Branches, but that would be prove in the end futile as well.

Who, then, shall we blame for this overweening appropriation of power? The Founders? Congress? The People themselves? Or is it as certain sociologists suggest, an “iron law” that after a certain period of time, power tends to concentrate.

I am happy our Noble Experiment lasted over 200 years. Both exemplary, and a mere blip on the scale of history. When we consider the ‘normal’ course of events is rule by (most unenlightened) despots, greedy oligarchy, or the mob, we haven’t done that badly.

While it is a sin to despair, it is willfully stupid to ignore when events are going against the course of freedom. (In my years of study and observation, I have never found that ‘History’ has a ‘side’, and if it did, the portion of authoritarian collectivist populism probably isn’t it, but I could be wrong.)

Nonetheless, for the last 30 some years, an image has persisted in my head, of the old Roman, who has sent his family and servants and his lares and penites to safety, who stands at the gate of his house, clad in his great-grandfather’s armor, awaiting the arrival of the Huns. He knows what his fate is to be, but will not go down gently into that good night. So stand I.

The true power of words [constitution] lies not in their literal application but in their resonance to their life enhancing spiritual significance. It is likely that the genius of our constitution is its nebulousness. The overhead costs of the bloated size of government at every level is not so important as measured in dollars, but as measured in the degree of imposition of its ideological will on the people. As a whole, the most ingenious, creative people any system of government the world has ever turned loose reside in this country. That did not happen due to the whims of the elected, but in spite of them. Presidents and the elected come and go. Keep the good ones and vote the bums out.

This was the sentence that stopped me: “The obvious exception was Abraham Lincoln, but the events surrounding this president are extraordinary, thus allowing the exception to prove the rule.”

I don’t think Mr. Lincoln was the exception. He was the beginning. It was not the ‘founding fathers’ that made the presidency too powerful. It was the Civil War. Jackson was a powerful president who tested the limits of the constitution, (And of course, famously crossed those limits, daring the courts to defy him.), but his actions were still within the context of the ‘old republic’ of six cabinet officers, for example, half of whom were dedicated to foreign matters. A federal government that outside of war, printing money, and delivering the mail, was seldom seen or felt by common Americans. Lincoln and the Civil War changed all that. Today’s presidential cabinet contains twenty one executive level members, overseeing vast intrusive bureaucracies, governing every aspect of the common American’s life. How would any of the presidents from the antebellum ‘old republic’ react to the knowledge of a federal government today that was intimately involved in everything from where and how American’s lived (HUD), how they worked (DoL), how and what they ate (HHS), breathed (EPA), thought, (DoE), or used to escape that troubling knowledge, (DEA).

The Imaginative Conservative is sponsored by The Free Enterprise Institute (a U.S. 501(c)3 tax exempt organization). Your donation to the Institute in support of The Imaginative Conservative is tax deductible to the extent allowed by law. (Gifts may be made online or by check mailed to the Institute at 9600 Long Point Rd., Suite 300, Houston, TX, 77055.)